Kenya at 50: Unrealized Rights of Minorities and Indigenous Peoples

report Kenya at 50: unrealized rights of minorities and indigenous peoples By Korir Sing’Oei Abraham Two young Turkana herders near the village of Kache Imeri in Turkana District, northern Kenya. Frederic Courbet / Panos. Acknowledgements also currently represents other minority groups in ongoing This document has been produced with strategic litigation and was a leading actor in the the financial assistance of the European development and drafting of Kenya’s constitutional Union. The contents of this document provisions on minority groups and marginalization. are the sole responsibility of Minority Rights Group International and can Minority Rights Group International under no circumstances be regarded as reflecting the Minority Rights Group International (MRG) is a position of the European Union. MRG's local implementation nongovernmental organization (NGO) working to secure the partner is the Ogiek Peoples Development Programme rights of ethnic, religious and linguistic minorities and (OPDP). indigenous peoples worldwide, and to promote cooperation and understanding between communities. Our activities are Commissioning Editor: Beth Walker, Production Coordinator: focused on international advocacy, training, publishing and Jasmin Qureshi, Copy editor: Sophie Richmond, outreach. We are guided by the needs expressed by our Typesetter: Kavita Graphics. worldwide partner network of organizations, which represent minority and indigenous peoples. The Author Korir Sing’Oei Abraham is a co-founder of the Centre for MRG works with over 150 organizations in nearly 50 Minority Rights Development. He is a human rights attorney countries. Our governing Council, which meets twice a year, and an advocate of the High Court of Kenya. For more than has members from 10 different countries. MRG has eight years, he has studied and advocated for land rights consultative status with the United Nations Economic and and minority rights in Kenya and East Africa, specifically Social Council (ECOSOC), and observer status with the through regional human rights bodies including the African African Commission on Human and Peoples’ Rights Commission on Human and Peoples’ Rights. He was lead (ACHPR). MRG is registered as a charity and a company counsel for the Endorois community in Kenya, representing limited by guarantee under English law. Registered charity them in their landmark case at the African Commission. He no. 282305, limited company no. 1544957. © Minority Rights Group International 2012 All rights reserved Material from this publication may be reproduced for teaching or for other non-commercial purposes. No part of it may be reproduced in any form for commercial purposes without the prior express permission of the copyright holders. For further information please contact MRG. A CIP catalogue record of this publication is available from the British Library. ISBN 978-1-907919-21-3 Published January 2012. Printed in the UK on recycled paper. Kenya at 50: unrealized rights of minorities and indigenous peoples is published by MRG as a contribution to public understanding of the issue which forms its subject. The text and views of the author do not necessarily represent in every detail and all its aspects, the collective view of MRG. Kenya at 50: unrealized rights of minorities and indigenous peoples By Korir Sing’Oei Abraham Contents Abbreviations 2 Executive summary 3 Map 4 Introduction 5 Minority identity in Kenya 6 Human rights concerns of minorities 11 Minorities and change: the new Constitution 16 Constitutionalizing minority rights in Africa 25 Conclusion 26 Recommendations 27 Notes 28 Abbreviations ACHPR African Commission on Human and Peoples’ IHRDA Institute for Human Rights and Development Rights in Africa ACRWC African Committee of Experts on the Rights ILO International Labour Organization and Welfare of the Child JSC Judicial Service Commission CBS Central Bureau of Statistics KANU Kenya Africa National Union CEMIRIDE Centre for Minority Rights and Development NCIA National Cohesion and Integration Act CIC Constitutional Implementation Commission NCIC National Cohesion and Integration CIPEV Commission of Inquiry into Post-Electoral Commission Violence NGO non-governmental organization EOC Equal Opportunities Commission NLC National Land Commission FGD focus group discussions OSI Open Society Justice Initiative ICC International Criminal Court TJRC Truth, Justice and Reconciliation Commission IDPs internally displaced persons UN United Nations 2 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Executive summary To mark Kenya’s 50th anniversary of self-rule, this report vulnerable groups generally, this report shows that the reviews the current status of minority and indigenous prevailing experience of minorities in Kenya is increased groups in Kenya. Focusing on Kenya’s 2010 Constitution, vulnerability. This means that although policy recognition this report pays particular attention to how legal and of minorities is an important gain, legislative and policy changes over the last five years have responded to administrative implementation remains a challenge. There the social, economic and political challenges confronting is a danger that constitutional recognition may not minorities. translate into positive developments for minority groups Kenya’s new Constitution is a progressive document that in reality. The report describes the ongoing challenges aims to address the failed legal and moral systems created by facing minority and indigenous groups: lack of political earlier colonial and postcolonial regimes. The country’s participation, discrimination and weak protection of their previous constitutional order alienated most citizens from right to development. the state, but minority and indigenous communities have Responding to the deep-seated disempowerment of borne the brunt of this exclusion. Further, this system minorities on the one hand and the opportunities reproduced and strengthened differences between Kenya’s presented by the new constitutional framework on the diverse groups – mainly ethnic and religious – rather than other, the report recommends that principles of building a pluralistic society that tolerates all shades of multiculturalism should be established in every sector of diversity based on equality before the law. society, including in education. It urges the Kenyan The present state of minority and indigenous groups government to facilitate the political participation of within Kenya’s dynamic context has been shaped by minorities and put a stop to targeted police harassment of conflicting forces of regression and progress responding to minority groups in the country. the 2007 post-electoral violence, the new Constitution Directed at non-governmental organizations (NGOs), and the forthcoming 2012 elections. This report policy actors and the media, the report warns that failure demonstrates both the opportunities to be seized and to ensure inclusion of minorities and address the anxieties constraints to be overcome by minority groups if they are of majorities, particularly in the context of county to realize the dream of inclusion. governments in the run-up to the 2012 elections and Although Kenya’s new Constitution contains beyond, will lead to untold conflict, driving the reform numerous positive provisions for minorities and other agenda several years back. KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES 3 Kenya SUDAN Administrative boundary ETHIOPIA Lokichoggio Ramu Mandera Lake Rudolf (Lake Turkana) Moyale Lodwar Turkwel Marsabit Y UGANDA E L L A V EASTERN Wajir T F Lak Bor I R RIFT VALLEY T SOMALIA o NORTH EASTERN KENYA ’ir A Maralal g Kitale N E Ewaso R WESTERN G Mado Gashi oia Eldoret Lak Dera Nz Lake Bogoria Isiolo Kakamega Butere Nyahururu Falls Meru Nanyuki Kisumu Mount Kenya Nakuru Kericho Nyeri Garissa Embu Lake NYANZA Victoria CENTRAL Tana Narok Thika Nairobi NAIROBI AREA EASTERN Athi Magadi COAST Garsen Lamu Namanga Tsavo Galana Malindi Tavela Voi Kilifi Mombasa INDIAN OCEAN TANZANIA 0 100 200 km 4 KENYA AT 50: UNREALIZED RIGHTS OF MINORITIES AND INDIGENOUS PEOPLES Introduction Kenya will celebrate its golden anniversary of self-rule in This provides activists with crucial ideas on how to secure 2012. Over this 50-year period, the country’s population minority and indigenous rights in the context of the has grown five-fold; from a mere 8 million people in constitutional implementation process in Kenya. 1964, to 40 million in 2009. Out of the 43 ethnic groups This report argues that it is essential to raise minority listed in Kenya’s 2009 National Housing and Population groups’ awareness of the provisions of the Constitution Census Report,1 five communities – Kikuyu, Luhya, and the implications of these provisions for their lives. Kalenjin, Luo and Kamba – account for over 50 per cent Among other key recommendations, this report urges the of the population; 18 other ethnic groups listed in the Kenyan state, development partners and civil society to report have populations of less than 100,000 people. This roll out a comprehensive civil education programme to report reviews the present status of minority communities benefit marginalized communities. This civic education in Kenya, paying particular attention to the manner in should also target public servants, particularly the police, which legal and policy changes over the last five years have who are instructed by the Constitution to address the taken account of the social, economic and political needs of vulnerable

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